AFFIRM and REMAND; and Opinion Filed November 20, 2014. 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05
- 13
- 01023
- CR THE STATE OF TEXAS , Appellant V. ELI RODRIGUEZ , Appellee On Appeal from the Criminal District Court No. 6 Dallas County, Texas Trial Court Cause No. F11
- 36048
- X 

### MEMORANDUM OPINION NUNC PRO TUNC Before Justices O’Neill, Lang

- Miers, and Brown Opinion by Justice Lang

- Miers We withdraw our opinion and vacat e our judgment dated October 10, 2014. We issue this substitute opinion to correct clerical errors. The State of Texas appeals t he trial court’s order granting appell ee Eli Rodriguez’s motion to suppress the warrantless search of hi s cell phone

. For the following reasons, we affirm the trial court’s order. We issue this memorandum opinion because the issues are settled in law. T EX
. R. A PP
. P. 47.2(a), .4. Irving police officers arrested appellee for the offense of stalking. Incident to the lawful

arr est , one of the officers searched the text messages on appell ee ’s cell phone “[j]ust to see if there was any evidence we needed to follow up on, any evidence of any kind of illegal activities.” He explained that he was looking for “[a]nything that would l ead us to believe there is any type of narcotics dealings going on.” He found one message he believ ed referred to marijuana and told his sergeant there may be evidence of dru g activity in the text messages

. The– 2

– sergeant asked a digital forensic specialis t to retrieve the data from the phone and put it in a paper format for the sergeant’s review. The data was retrieved without a warrant the next day. One of the messages “sparked ” a n investigation of appell ee for sexual assault. T he police determined tha t the number associated with a specific text message belonged to a girl named “Destiny.” The y talked to Destiny and learned that she had been involved in a “sexual situation” with appell ee ; she was fourteen and more than three years younger than appell ee . The State charged appell ee with sexual assault of a child. Appell ee moved to suppress the evidence obtained as a result of the warrantless search of his cell phone

. The trial court h eld a hearing on the motion and, a fter taking the matter under advisement, granted the motion and suppressed the search of the cell phone and Destiny’ s testimony . The trial court stated it was relying on the decision in United States v. Wurie , 728 F.3d 1, 1 (1st Cir. 2013) , cert. granted , 134 S.Ct. 999 (2014), in whi ch the court of appeals concluded that a warrantless search of a cell phone incident to a lawful arrest violated the Fourth Amendment

. The State argued that Wurie was not binding on the trial court , but that even if the search of the cell phone should be suppressed, the State was entitled to a hearing on the admissibility of Destiny’s testimony

. T he trial court recalled that the officers testified the y were unaware of the relation ship between Destiny and appellee before they searched the cell phone and suppressed Destiny’s testimony. On appeal, t he State argues that the trial court erroneously granted the motion to suppress because the search of the cell phone was a valid search incident to arrest and was to preserve evidence “so that there would be no c hance that it would be wiped clean or erased.” Alternatively, it argues that even if the trial court did not err by suppressing the search of the cell phone , the trial court erred by not holding a hearing regarding the admissibility of Destiny’s testimony

.– 3

– We review a trial court’s ruling on a motion to suppress for an abuse of discretion. Swain
v. State , 181 S.W.3d 359, 365 (Tex. Crim. App. 2005). We conclude that the trial court did not abuse its discretion. After the parties filed their brief s in th is case, t he Supreme Court issued a decision in the consolidated appeals in United States v. Wurie and Riley v. California

. __ U.S. __, 134 S.Ct. 2473 (2014). Both appeals involved warrantless searches of the defendants’ cell phones incident to a lawful arrest. Id . at 2480

– 82. T he Court considered the same arguments the State raises here to justify t he warrantless search of appellee ’s cell phone: the search was incident to a lawful arrest and it was to prevent the destruction of evidence. Id . at 2484

– 95. After considering these arguments, the Court stated: “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple

— get a warrant.” Id . at 2495 ; see also State v. Granville , 423 S. W.3d 399, 402, 417 (Tex. Crim. App. 2014) (requiring warrant to search cell phone). The warrantless search of appell ee ’s cell phone was illegal , and the trial court did not abuse its discretion by so concluding

. See Riley , 134 S.Ct. at 2484

– 95; Granville , 423 S.W.3d at
417. But t he State argues that even if the trial court did not err by suppressing the search of the cell phone , “[a]ny taint from an illegal search of the cell phone . . .

— the discovery of a live witness

— was sufficiently attenuated.” The State argues that the trial court should have held a hearing on “the willingness of a live witness to testify[.]” We disagree

. Th e record shows that th is was not a situation where a victim called the police and reported a crime; the police called Destiny. But the only reason the police officers knew about Destiny and her sexual relationship with appell ee was because of their illegal search of appellee ’s cell phone. Consequently, we conclude that the trial court did not err by suppressing Destiny ’s testimony as fruit of the poisonous tree. See Riley , 134 S.Ct. at 2481

– 82, 2495

.– 4

– We affirm the trial court’s order granting appell ee ’s motion to suppress. We remand this cause for further proceedings consistent with this opinion.

Do Not Publish T EX
. R. A PP
. P. 47.2(b) 131023F.U05 /Elizabeth Lang

- M iers/ ELIZABETH LANG

- MIERS JUSTICE– 5

– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
THE STATE OF TEXAS, Appellant
No. 05

- 13

- 01023

- CR V. ELI RODRIGUEZ, Appellee On Appeal from the Criminal District Court No. 6, Dallas County, Texas Trial Court Cause No. F11

- 36048

- X. Opinion delivered by Justice Lang

- Miers, Justices O’Neill and Brown participating. We vacate our judgment dated October 10, 2014. Based on the Court’ s opinion of this date, the July 10, 2013 order of the trial court granting appellee Eli Rodriguez’s motion to suppress is AFFIRMED . We REMAND this cause to the trial court for further proceedings consistent with this opinion.
Judgment entered this 20th day of November, 2014.